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Judgment Day for the GPL?

http://www.linuxplanet.com/linuxplanet/reports/2000/1/

.comment: Judgment Day for the GPL? Determining the Legality of the GPL

Dennis E. Powell

This summer could be a lot hotter than usual--not because of global warming, which may or may not be taking place, but because of a lawsuit which may or may not be taking place.

Before summer's end, a long-awaited court test of the GNU General Public License may be filed, says Eben Moglen, professor at the Columbia University Law School and general counsel to the Free Software Foundation.

"If you wait another couple of months I wouldn't be surprised if you see either a lawsuit or a voluntary agreement to comply entered into by a major international software house that has done exactly what you postulate, less in the 'embrace and extend' model than in the 'security through obscurity' model, which is another reason why those who build works on top of free software sometimes try not to disclose source," Moglen told me in en e-mail exchange dealing with the basic nature of the GPL, the licensing instrument of much if not most Linux- related software. (I had asked him whether it would be possible for a commercial software firm to envelop GPLed code, alter it, and sell it, sans source code, and whether it would be possible to obtain judicial relief under such circumstances.)

Moglen would not reveal the details of the potential lawsuit, nor would he name the company involved, noting that if he did he would reduce the likelihood that court could be avoided.

"The process that leads up to litigation is always a tricky negotiation," he said. "We always prefer nonjudicial enforcement if we can get it, which is why the GPL is not the subject of court cases: I have not failed in the past to gain voluntary cooperation. But gaining that cooperation includes freedom to assure those who come into compliance that there will be no public statements about their past noncompliance."

The lawsuit, if it takes place, will be the first court test of the GPL. The outcome is not assured. Lawyers experienced in intellectual property law, though, say that it's unlikely the Free Software Foundation would launch an action without a case likely to produce an outcome favorable to the GPL. And the case, if one is filed, might bring a degree of stability to a document about which legal opinions vary widely.

Part of the uncertainty is caused by unresolved ambiguity as to just what the GPL is.

A Contract? A Copyright? Both? Software licenses are generally considered to be contracts. When a user clicks the "Agree" box on the license page during software installation, that constitutes agreement to a contract. (Some claim that it is an invalid contract--though I've found few lawyers who do--but that will have to wait for another writer on another day. This is already going to be too complicated.)

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